CANBERRA OBSERVED: Roxon's law: guilty until proven innocent

Nicola Roxon’s long-held naked ambition to become the Commonwealth Attorney-General, and to quickly make her mark in that role, risks making her the most radical chief law-maker since Lionel Murphy.

The Gillard Labor Government’s proposed changes to the Commonwealth Human Rights and Anti-Discrimination laws will over time have a profound affect on freedom of speech and freedom of religion in Australia and will inevitably result in further encroachments of officialdom onto the lives of ordinary Australian citizens.

The government says the changes are designed to make anti-discrimination laws simpler and fairer.

However, the laws are so ambiguous and loose, that they leave open all sorts of legal action against a range of behaviours, from heckling at football matches to colourful turns of phrase commonly used in the Australian lexicon.

Expressing a political opinion in the workplace that causes offence to another workmate could result in the person expressing that opinion being taken to court.

And while Australians pride themselves on having a tolerant society, it is likely these laws will have the reverse effect by encouraging people to embark on litigation as a means to stifle comment, difference of opinion and the personal beliefs of others.

The mainstream media will be further muffled with a new layer of self-censorship because journalists and editors will be forced to be on alert not to write articles or opinions that might offend people with contrary views and particular social backgrounds.

People of faith, especially, will increasingly have to hold in check their personal views and refrain from public expressions of their religion in case it causes offence to minority groups or non-believers. A Christian procession through a neighbourhood with a Muslim presence could constitute offensive behaviour, for example.

The key problem with the proposed changes to the Roxon anti-discrimination laws is that they are being broadened to include any conduct that “offends”, “insults” or “intimidates”.

Not only will it be illegal to discriminate on the grounds of disability, race and religion, but “political opinion” and “social origin” are also to be included. Other new areas where you cannot discriminate against people include industrial history, citizenship and medical history.

But what constitutes these potentially soon-to-be illegal activities will be in the eye or the ear of the offended or insulted.

Current legal protections for the alleged “insulter” or “offender” are to be reduced, as the courts will deem them to be guilty until they can prove their innocence.

Furthermore, rights to legal representation are to be curtailed, and under a provision designed to “streamline costs” the person who is brought to court for having allegedly committed an offence will have to pay their own costs regardless of the outcome of the case.

Penalties will be harsh, ranging from public humiliation in the form of a forced apology to compensation for the offended and imposed censorship by the courts.

The proposed new laws will provide a new body of work for various human rights and equal opportunity commissions around the country.

It is no wonder there have been hundreds of submissions to a parliamentary committee reviewing the legislation.

Various religious groups have expressed their concern, while former NSW Chief Justice and now new chair (sic) of the ABC Jim Spigelman has declared: “The freedom to offend is an integral component of free speech.”

A submission by Australia’s media organisations declared: “No other liberal democracy has a human rights or anti-discrimination statute proscribing conduct which merely offends or insults.”

Ironically, some groups are declaring that the proposed changes to the law are a missed opportunity and are demanding Ms Roxon remove current special exemptions from anti-discrimination laws granted to religious and other groups. For the moment, it seems that removing these exemptions is a step too far for Ms Roxon.

But having secured her dream job in what is possibly the twilight period of the Gillard Government, Roxon is determined not to waste the final months of it.

Ms Roxon was never greatly attached to health. There was no clear reform mandate from Kevin Rudd, and she found it wearying having to adjudicate between the noisy and competing interests in the health sector. Her most notable achievement in the portfolio was in fact a legal victory over the tobacco manufacturers over plain packaging.

By contrast, Roxon’s interest in being Attorney-General stretches back to her younger days as a postgraduate judge’s associate to High Court Justice Mary Gaudron.

Under Mr Rudd, Ms Roxon’s ambitions were blocked because he preferred a more moderate steady-as-she-goes chief law-maker in the form Robert McClelland.

Instead, Ms Roxon, who, according to her Wikipedia entry, is a confirmed atheist, wants to introduce changes to discrimination laws that will have far-reaching unintended consequences for democracy, public discourse and freedom of religion for decades to come.